Foret v. Stryker Corporation et al
ORDER DISMISSING CASE without prejudice, for lack of federal subjectmatter jurisdiction. Signed by Judge James A Teilborg on 12/9/11. (LSP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
DJO, LLC; et al.,
No. CV 11-1707-PHX-JAT
On November 3, 2011, the Court issued the following order:
“Inquiring whether the court has jurisdiction is a federal judge’s first
duty in every case.” Belleville Catering Co. v. Champaign Market Place,
L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). In this case, in their joint proposed
case management plan (Doc. 67) the parties agree that this Court has
jurisdiction based on diversity. However, the parties fail to allege sufficient
facts to establish the citizenship of each party.
Specifically, the parties allege that DJO, LLC is a corporation;
however, limited liability companies are not corporations. See Johnson v.
Columbia Properties Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006).
Thus, Plaintiff who is the party asserting jurisdiction and therefore the party
with the burden of pleading jurisdiction, see Lew v. Moss, 797 F.2d 747, 749
(9th Cir. 1986), shall be required to supplement the jurisdictional statement as
set forth below.
IT IS ORDERED that by November 21, 2011, Plaintiff shall file a
supplement to the joint proposed case management plan properly alleging
federal subject matter jurisdiction, or this case will be dismissed without
prejudice for lack of federal subject matter jurisdiction.
On November 15, 2011, the Court issued the following Order:
On November 14, 2011, Plaintiff filed a supplement advising the Court
of the citizenship of the parent company of DJO, LLC. The Court is aware of
no case holding that a limited liability company takes on the citizenship of its
parent company. Instead, a limited liability company takes on the citizenship
of it members. See Johnson v. Columbia Properties Anchorage, L.P., 437 F.3d
894, 899 (9th Cir. 2006).
Normally, the Court would dismiss this case at this point. However,
perhaps Plaintiff intended to imply by her pleading that the parent company is
the sole member of DJO, LLC. Thus, the Court will give Plaintiff one further
opportunity to supplement her jurisdictional statement as follows:
IT IS ORDERED that Plaintiff shall file a second supplement properly
alleging federal subject matter jurisdiction by November 21, 2011. If this
supplement does not establish jurisdiction, the Court will dismiss this case
without prejudice. Because the parties cannot stipulate to federal subject
matter jurisdiction, Defendant must move to dismiss this case if the Court
lacks jurisdiction. See Belleville Catering Co. v. Champaign Market Place,
L.L.C., 350 F.3d 691, 693 (7th Cir. 2003).
On November 21, 2011, Plaintiff filed another supplement which alleged a state of
licensing for the limited liability company and a principal place of business. Thus, Plaintiff
still has never pleaded the membership in the limited liability company Defendant, nor any
of those members citizenship. Accordingly,
IT IS ORDERED dismissing this case, without prejudice, for lack of federal subject
DATED this 9th day of December, 2011.
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